This article appeared in the winter 2013 issue of Family Law News, published by the Family
Law Section of the Virginia State Bar Association.
Thoughts on Third Party Assisted Negotiation and the High Pressure Settlement of Disputes
Consider this. After twenty years of marriage, two parties separate. They are each
college educated, and are each gainfully employed. The parties have two children whom they
hope to send to college, ages 13 and 15. They have amassed a lot of assets during their marriage.
A retired judge is hired by counsel to mediate. The case is currently on the docket for a
two day trial on all issues, to be heard a week or two after the scheduled mediation session.
The mediation session starts at 9 a.m. It concludes 16 hours later at 1 a.m., with
signatures on a document prepared by counsel during the session.
During the mediation, the parties are told the expectation is that:
1) they will stay “for as long as it takes until it is done,”
2) with each party and his or her counsel in separate rooms, and
3) the parties must sign a comprehensive written Agreement before the matter
can be concluded, because otherwise someone might try to “renege” on the Agreement, or might
“change his or her mind and the settlement will fall apart.”
The fruits of a twenty year marriage are then divided up by numbed and exhausted parties
under extreme pressure with a rather hastily finalized document.
It is my opinion that this is an increasingly common but absolutely wrong way to resolve
the dissolution of a marriage, and to divide all that two people have in this world.
To work on a negotiation only a week or two before trial does not allow enough time for
thoughtful drafting and consideration of the final Agreement. I submit that if a non-litigated
form of dispute resolution is to be used when a case has already been set for a final hearing,
those negotiations should occur at least one month before trial. We would never want to put a
client in a position where he or she “has” to settle because there is no time left to litigate. If trial
is only a week or two away, it is time to focus exclusively on trial preparation, such as witness
testimony and the finalization of exhibits, or the litigant will not be ready for trial.
I submit that to conduct negotiations in one marathon session of more than 8 or 9 hours is
too heavy a burden to place on already stressed parties, especially if they are trying to co-parent.
To consider the division of all that a couple has – their children, their home, their retirement and
their investments, and to consider the monthly budgets and expenditures of each party for the rest
of their lives in determining support, should be a thoughtful process, not one that is rushed.
When there are children sitting home wondering where their parents are, and when parties have
jobs to go to the next day, it is hard to see how a family is well-served by keeping the parties up
through the wee hours of the morning.
To minimize the pressure on the parties, and to allow sufficient time for the disputants
and counsel to properly consider settlement terms, adequate time should be arranged. At least
two sessions should be scheduled at the very outset. Often there will be tasks to be undertaken
and information to be obtained after the first session. Or the issues may be resolved at a first
session, and an Agreement finalized and reviewed before a second session. At the second
session, final points are clarified, raised or drafted, and the Agreement can be signed. Much can
be accomplished more efficiently in two sessions that run from 10 a.m. to 4 p.m., than in the
middle of the night after 10 or 12 hours of negotiations.
In addition, keeping parties in separate rooms can tend to increase adversarial posturing.
Perhaps some feel this sort of pressure is beneficial when this method of assisted negotiation is
used, but when the disputants then have to share carpooling duties for their children, the process
will likely have damaged the family dynamic more than is necessary. Not to mention the lost
opportunity of obtaining some real transformative results because each side is kept in the dark
about the real concerns and fears of the other, which fears and concerns could have been
properly addressed and resolved. By keeping parties apart, the attorneys are unable to obtain
helpful information directly from the other party that can be gleaned through body language and
direct discussion.
Furthermore, to require signatures on a document at the end of a long session invites
error. Yes, it is quite possible that an error or two was made that should be corrected, something
was forgotten, a new issue occurred to someone later on, or someone might have changed his or
her mind on something. All of the above is to be expected, is perfectly normal, and is
appropriate to address. Including changing one’s mind. There is no reason why assisted
negotiations should be viewed any differently than simple 4-way negotiations, where
Agreements are tweaked and perfected until they clearly embody what the parties want
embodied.
Of course the possibility of one of the parties changing his or her mind after a high
pressure session is exactly why settlement efforts should occur well in advance of trial. If parties
are allowed three days to change their minds when they purchase fitness plans or sign certain
other contracts that may be entered into with high pressure tactics, surely more important matters
should be allowed adequate time for reflection. If a settlement falls apart, it likely wasn’t a good
settlement for someone, and the matter needs to go to court.
I for one would like this sort of marathon, last minute, separate room settlement approach
that has to be concluded with the signing of a document before anyone can go home, to be
curtailed. However, if a third party will be assisting litigants in their negotiations, at least the
following parameters should be followed:
1. At least two mediation sessions shall be scheduled at the very outset.
2. Each session shall be calendared to run from 9:00 or 10:00 a.m., until 4:00 p.m. That
way no one is getting up before dawn, and the work is done during a “normal” work day, with a
little wiggle room. The session may run over to 5 p.m., but the participants can try to finish by 4,
knowing they have built in a little extra time if that time is essential to wrap up an issue.
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3. No settlement negotiations are undertaken unless there is still adequate trial
preparation time, which likely means that to properly allow for at least two sessions and time to
draft and finalize an Agreement, no sessions will be scheduled later than one month before trial.
If attempts will be made to settle, there is no reason not to obtain any necessary information and
then start discussions early on.
4. For at least part of the negotiations, both parties and both counsel will all be in the
same room to check in with each other, at least when the parties have children together.
Seasoned family law attorneys who are trying to help a family move forward through their
conflict should be able to manage a productive four way discussion. I submit that there is no
benefit to reinforcing a perceived need to keep parties apart if they are trying to co-parent. A
party should not need to be “protected” from expressing his or her valid views in front of the
other party with assistance of counsel.
5. An Agreement will be drafted or finalized after the session ends. The document will
be circulated. Everyone will think about it, and someone will inevitably find some errors,
omissions, missed items, need for clarification, new considerations, and math errors, and may
even have second thoughts on something. That is appropriate, common, and not to be feared.
There is nothing different about assisted negotiation that mandates rushed signatures on
Agreements that have not been properly considered and checked, just so settlement can be
proclaimed.
When parties want to settle, they will settle. If they want to litigate, then they should
litigate. It is my concern that attorneys are increasingly calling in third parties to help settle
cases after excessive attorneys fees have been incurred, which cases could have been settled
cooperatively or collaboratively from the very outset at less cost. I am further concerned at what
I perceive to be an increase in the litigation of cases up to a point, (generally after excessive
posturing, discovery and Motions over matters that could have been easily negotiated), and then
the decision of counsel that “it is now time to mediate.”
I am not convinced that it is the decision of a party to “finally” settle. I am concerned
that this process of shuttle diplomacy is increasingly being used for cases in litigation that at least
one attorney decides it is time to resolve because he or she never had any intention of fully
litigating the case in the first place, maybe with or without the client’s full understanding of the
options and timing.
It is my hope that new attorneys especially will take these thoughts to heart, and will
stand up to more seasoned counsel who wish to pressure physically and mentally exhausted
parties to sign rather hastily prepared documents on the eve of trial after marathon sessions
where the parties don’t even look each other in the eye.
Maybe after 24 years of litigating, negotiating, collaborating and mediating, I am missing
something in failing to see the benefits of the high pressure last minute settlement of family
disputes. Perhaps some third party mediators could obtain the training to manage all four
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participants in the same room, which method can produce a more satisfying and transformative
result for families.
I would be happy to read an article that enlightens me as to why high pressure settlement
is ever a good idea. I would also be happy to see more family law attorneys have the confidence
and honesty of working towards settlement at the very outset through 4-way meetings using the
collaborative process.
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